The design features of a useful article will not qualify for either copyright or trade dress protection if they are considered functional. The functionality doctrine is an elusive one; in the trade dress arena, courts have experienced considerable difficulty in setting forth functionality tests clearly. The author synthesizes several functionality standards from recent case law and discusses the merits of each. This Note suggests that in trade dress cases courts should distinguish between mechanical and non-mechanical products and apply different tests to each.
Beth F. Dumas,
Functionality Doctrine in Trade Dress and Copyright Infringement Actions: A Call for Clarification,
12 Hastings Comm. & Ent.L.J. 471
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol12/iss3/11